$1,400,000,000
CALENERGY COMPANY, INC.
6.96% Senior Notes due 2003
7.23% Senior Notes due 2005
7.52% Senior Notes due 2008
8.48% Senior Bonds due 2028
UNDERWRITING AGREEMENT
----------------------
September 17, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
GOLDMAN, SACHS & CO.
As Representatives of the several
Underwriters named in Schedule A,
c/o Credit Suisse First Boston Corporation ("CSFB")
Eleven Madison Avenue
New York, New York 10010
Dear Sirs:
CalEnergy Company, Inc., a Delaware corporation (the "Company"),
proposes to sell $215,000,000 aggregate principal amount of its 6.96% Senior
Notes due 2003 (the "2003 Notes"), $260,000,000 aggregate principal amount of
its 7.23% Senior Notes due 2005 (the "2005 Notes"), $450,000,000 aggregate
principal amount of its 7.52% Senior Notes due 2008 (the "2008 Notes") and
$475,000,000 aggregate principal amount of its 8.48% Senior Bonds due 2028 (the
"Bonds" and, together with the 2003 Notes, the 2005 Notes and the 2008 Notes,
the "Securities"). The Securities are to be issued pursuant to the Indenture
dated as of October 15, 1997 (the "Base Indenture"), as supplemented by the
First Supplemental Indenture dated as of October 28, 1997 (the "First
Supplemental Indenture") and the Second Supplemental Indenture to be dated as
of September 22, 1998 relating to the Securities (the "Second Supplemental
Indenture" and, together with the Base Indenture and the First Supplemental
Indenture, the "Indenture"), between the Company and IBJ Schroder Bank & Trust
Company, as trustee (the "Trustee"). This is to confirm the agreement
concerning the purchase of the Securities from the Company by the Underwriters
named in Schedule A hereto (the "Underwriters").
1
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No. 333-62697),
including a form of prospectus relating to certain debt and equity
securities (the "Registered Securities") to be issued from time to time by
the Company, has been filed with the Securities and Exchange Commission
(the "Commission") and has been declared effective under the Securities Act
of 1933, as amended (the "Act"), and the Indenture has been qualified under
the Trust Indenture Act of 1939 (the "Trust Indenture Act"). The Company
proposes to file with the Commission pursuant to Rule 424 under the Act, a
form of prospectus supplement specifically relating to the Securities. The
regis tration statement, as amended at the time of this Agreement,
including all material incorporated by reference therein, is hereinafter
referred to as the "Registration State ment," and the form of prospectus
included in such Registration Statement, as supple mented by the prospectus
supplement specifically relating to the Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act, including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus". No document has been or will
be prepared or distrib uted in reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating
to the Registered Securities, such registration statement conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission ("Rules and Regulations") thereunder and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of this Agreement, the
Registration Statement conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b), the Registration Statement and the
Prospectus will conform, in all material respects to the requirements of
the Act and the Rules and Regulations, and none of such documents includes,
or will include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or necessary
to make the statements therein (with respect to the Prospectus, in the
light of the circumstances under which they were made) not misleading,
except that the foregoing does not apply to statements in or omissions from
the Registration Statement or the Prospectus based upon written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
8(e); and the Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the Rules and Regulations of
the Commission thereunder.
(c) The documents incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or were last
amended or filed
2
with the Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable, and the Rules and Regulations,
and none of such docu ments contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and any further documents so
filed and incorporated by reference in the Registration Statement and the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, shall conform in all material respects to
the requirements of the Act and the Exchange Act as applicable, and the
Rules and Regulations and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made.
(d) The Company, each Subsidiary (as defined below) and each
Joint Venture (as defined below) have been duly organized and are validly
existing and, if applicable, in good standing under the laws of their
respective jurisdictions of organization as a corporation, limited
liability company or partnership, as the case may be, and have the power
and authority to own, lease and operate their property and conduct their
businesses as described in the Prospectus; the Company, the Subsidiaries
and the Joint Ventures are duly qualified to do business and are in good
standing as foreign corporations or foreign partnerships, as the case may
be, in each jurisdiction, domestic or foreign, in which such registration
or qualification or good standing is required (whether by reason of the
ownership or leasing of property, the conduct of business or otherwise),
except where the failure to so register or qualify or be in good standing
is not reasonably likely to have a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole. For purposes of this
Agreement, (A) the term "Subsidiary" shall mean the entities listed in
Schedule B hereto ("Schedule B") and (B) the term "Joint Venture" shall
mean the entities listed in Schedule C hereto ("Schedule C"), it being
understood that such term means the general or limited partnership or other
joint venture entity and not the individual general or limited partners or
other joint venturers thereof. The Subsidiaries listed in Schedule B are
all the material direct and indirect "subsidiaries" of the Company, as such
term is defined in Rule 405 of the Rules and Regulations, and are all of
the "Significant Subsidiaries" of the Company, as such term is defined in
Rule 1-02 of Regulation S-X.
(e) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully-paid and nonassessable; and except as otherwise set forth in Schedule
B or disclosed in or contemplated by the Prospectus, all outstanding shares
of capital stock of each Subsidiary are owned beneficially by the Company
free and clear of any material claims, liens, encumbrances and security
interests. All of the partnership interests in the Joint Ventures
beneficially
3
owned by the Company (as reflected in Schedule C) have been duly and
validly autho rized and issued and, except as otherwise set forth in
Schedule C or disclosed in or contemplated by the Prospectus, are owned
beneficially by the Company free and clear of any material claims, liens,
encumbrances and security interests.
(f) All the outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable.
(g) The Securities have been duly authorized by the Company, and,
when duly executed, authenticated, issued and delivered against payment
therefor as contemplated hereby and by the Indenture, shall be validly
issued and outstanding, and shall constitute valid and binding obligations
on the part of the Company, entitled to the benefits of the Indenture, and
enforceable against the Company in accordance with their terms, except as
enforcement may be limited by applicable bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by equitable principles generally; and the
Securities, when issued and delivered, shall conform in all material
respects to the descriptions thereof contained in the Prospectus.
(h) Each of the Base Indenture and the Second Supplemental
Indenture has been duly authorized, and when duly executed and delivered by
the Company, shall constitute a valid and binding agreement on the part of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by equitable principles
generally; and the Base Indenture and the Second Supplemental Indenture,
when executed and delivered, shall conform in all material respects to the
descriptions thereof contained in the Prospectus.
(i) The use of the proceeds of the offering of the Securities as
described in the Prospectus has been duly authorized by all necessary
action on the part of the Company.
(j) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment
in connection with the offering of the Securities.
(k) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings which have not been satisfied or
waived between the Company and any person requiring the Company to include
securities of the Company owned or to be owned by such person in the
securities registered pursuant to the Registration Statement.
4
(l) The execution, delivery and performance of this Agreement,
the Base Indenture and the Second Supplemental Indenture, and the issuance
and sale of the Securities and the use of the proceeds of the offering of
the Securities as described in the Prospectus will not (A) conflict with
the corporate charter or by-laws or partnership agreement of the Company,
any Subsidiary or any Joint Venture, (B) conflict with, result in the
creation or imposition of any lien, charge or other encumbrance (other than
as contemplated by the Indenture) upon any asset of the Company, any
Subsidiary or any Joint Venture pursuant to the terms of, or constitute a
breach of, or default under, any agreement, indenture or other instrument
to which the Company, any Subsidiary or any Joint Venture is a party or by
which the Company, any Subsidiary or any Joint Venture is bound or to which
any of the properties of the Company, any Subsidiary or any Joint Venture
is subject, or (C) result in a violation of any statute, rule, regulation,
order, judgment or decree of any court or governmental agency, body or
authority having jurisdiction over the Company, any Subsidiary or any Joint
Venture or any of their properties where any such conflicts, encumbrances,
breaches, defaults or violations under clauses (B) or (C), individually or
in the aggregate, is reasonably likely to (i) have a material adverse
effect on the financial condition, business or results of operations of the
Company, the Subsidiaries and the Joint Ventures taken as a whole or (ii)
impair the validity or enforceability of the Securities under the Act.
(m) Except (A) as to state or foreign securities laws , (B)
consents of third parties which have been obtained and (C) consents of
third parties that are required to be obtained to the MidAmerican Merger
(as defined herein) that have been disclosed in the Prospectus or that are
ministerial in nature and are expected to be obtained in the ordinary
course, no consent, approval, authorization or order of, or filing or
registration by the Company, any Subsidiary or, to the best of the
Company's knowledge, any Joint Venture with, any court, governmental agency
or third party is required for the consummation of the transactions
contemplated by this Agreement and the Indenture in connection with the
issuance and sale of the Securities by the Company and the use of the
proceeds of the offering of the Securities as described in the Prospectus.
(n) The Company has full power and authority to authorize, issue
and sell the Securities as contemplated by this Agreement and to execute,
deliver and perform this Agreement, the Base Indenture and the Second
Supplemental Indenture and the Securities.
(o) This Agreement has been duly authorized, executed and
delivered by the Company.
(p) Except as disclosed in or contemplated by the Prospectus, the
Company, each Subsidiary and each Joint Venture holds, as applicable, good
and valid title to, or valid and enforceable leasehold or contractual
interests in, all real properties and all other properties and assets owned
or leased by or held under contract by each of
5
them that are material to the business of the Company, the Subsidiaries and
the Joint Ventures taken as a whole, and free from liens, encumbrances and
defects that would materially interfere with the use made or to be made
thereof by them.
(q) Except as disclosed in or contemplated by the Prospectus, the
Company, the Subsidiaries and the Joint Ventures carry, or are covered by,
insurance in such amounts and covering such risks as is customary for
similarly situated companies in the Company's, such Subsidiaries' and such
Joint Ventures' industries, respectively. Each of the foregoing insurance
policies is valid and in full force and effect, and no event has occurred
and is continuing that permits, or after notice or lapse of time or both
would permit, modifications or terminations of the foregoing that,
individually or in the aggregate, is reasonably likely to have a material
adverse effect on the financial condition, business or results of
operations of the Company, the Subsidiaries and the Joint Ventures taken as
a whole.
(r) Except as disclosed in or contemplated by the Prospectus, the
Company, each Subsidiary and each Joint Venture (i) has obtained each
license, permit, certificate, franchise or other governmental authorization
which is material to the ownership of their properties or to the conduct of
their businesses as described in or contemplated by the Prospectus and (ii)
is in compliance with all terms and conditions of such license, permit,
certificate, franchise or other governmental authorization, except (A) in
either case where the failure to do so is not reasonably likely to have,
individually or in the aggregate, a material adverse effect on the
financial condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole, (B) permits, consents
and approvals that may be required for future drilling or operating
activities which are ordinarily deemed to be ministerial in nature and
which are anticipated to be obtained in the ordinary course and (C)
permits, consents and approvals for developmental or construction
activities which have not yet been obtained but which have been or will be
applied for in the course of development or construction and which are
anticipated to be obtained in the ordinary course.
(s) Except as disclosed in the Prospectus, there are no legal or
governmental actions, suits or proceedings before any court, governmental
agency, body or authority, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against, or, to the knowledge of the
Company, involving, the Company, any Subsidiary or any Joint Venture (i) of
a character required to be disclosed in the Registration Statement which is
not adequately disclosed in the Registration Statement or (ii) that, if
determined adversely to the Company, any Subsidiary or any Joint Venture
would be reasonably likely to have, individually or in the aggregate, a
material adverse effect on the financial condition, business or results of
operations of the Company, the Subsidiaries and the Joint Ventures taken as
a whole, or on the ability of the Company to perform its obligations under
this Agreement or the Indenture, or which are otherwise material in the
context of the sale of the Securities.
6
(t) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(u) The Company, the Subsidiaries and the Joint Ventures are
currently conducting their respective businesses as described in the
Prospectus.
(v) There are no contracts or documents of a character required
to be described in the Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement which are not described or filed
as required under the Act.
(w) There is no relationship, direct or indirect, that exists
between or among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand, of a
character required to be described in the Registration Statement or
Prospectus which is not described as required under the Act.
(x) There is no labor problem or disturbance with the persons
employed by the Company, any Subsidiary or any Joint Venture that exists
or, to the knowledge of the Company, that is threatened and that might
reasonably be expected to have a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole.
(y) Neither the Company nor any person who is a member of a group
which is under common control with the Company and the Subsidiaries and the
Joint Ventures, who together with the Company, the Subsidiaries and the
Joint Ventures is treated as a single employer ("ERISA Affiliate") within
the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code
of 1986, as amended from time to time (the "Code"), or Section 4001(b) of
the Employee Retirement Income Security Act of 1974, as amended from time
to time ("ERISA"), has established, sponsored, main tained or had any
obligation to contribute to any employee benefit plans within the meaning
of Section 3(3) of ERISA which are subject to Title IV of ERISA or Section
412 of the Code. Except where it could not reasonably be expected to result
in a material adverse effect on the financial condition, business or
results of operations of the Company, the Subsidiaries and the Joint
Ventures taken as a whole, (i) all employee benefit plans within the
meaning of Section 3(3) of ERISA established, spon sored or maintained for
or on behalf of the employees, officers or directors of the Company, the
Subsidiaries, the Joint Ventures or any ERISA Affiliate ("Employee Benefit
Plans") are in compliance with all applicable provisions of ERISA and the
Code and the regulations and published interpretations thereunder and each
such Employee Benefit Plan that is intended to be qualified under Code
Section 401(a) has been determined by the Internal Revenue Service to be so
qualified and (ii) no material liability or obligation has been incurred or
is reasonably expected to be incurred by the Company, the Subsidiaries or
the Joint Ventures or any ERISA Affiliate with respect to any Employee
Benefit Plan.
7
(z) None of the Company, any Subsidiary or any Joint Venture (i)
is in violation of its respective charter, by-laws or partnership
agreement, (ii) is in default, and no event exists and is continuing that,
with notice or lapse of time or both, would constitute such a default, in
the due performance and observance of any material term contained in any
lease, license, indenture, mortgage, deed of trust, note, bank loan or
other evidence of indebtedness or any other agreement, understanding or
instrument to which the Company, any Subsidiary or any Joint Venture is a
party or by which the Company, any Subsidiary or any Joint Venture or any
property of the Company, any Subsidiary or any Joint Venture may be bound
or affected, which default, individually or in the aggregate, is reasonably
likely to have a material adverse effect on the financial condition,
business or results of operations of the Company, the Subsidiaries and the
Joint Ventures taken as a whole, or (iii) is in violation of any law,
ordinance, governmental rule or regulation or court decree to which it may
be subject, which violation, individually or in the aggregate, is
reasonably likely to have a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole or would materially
interfere with the execution, delivery and performance of this Agreement,
the Indenture, the consummation of the transactions contemplated herein or
therein, the issuance and sale of the Securities or the use of the proceeds
of the offering of the Securities as described in the Prospectus.
(aa) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, hazardous wastes or hazardous substances, pollutants or
contaminants by the Company, any Subsidiary or any Joint Venture (or, to
the knowledge of the Company, any of their predecessors in interest) at,
upon or from any of the property now or previously owned or leased by the
Company, any Subsidiary or any Joint Venture in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit or
which would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any
violation or remedial action which does not have, or would not be
reasonably likely to have, individually or in the aggregate with all such
violations and remedial actions, a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole; there has been no
material spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the environment surrounding
such property of any toxic wastes, solid wastes, hazardous wastes or
hazardous substances, pollutants or contaminants due to or caused by the
Company, any Subsidiary or any Joint Venture or with respect to which the
Company, any Subsidiary or any Joint Venture has knowledge, except for any
such spill, discharge, leak, emission, injection, escape, dumping or
release which does not have, or would not be reasonably likely to have,
individually or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a material adverse
effect on the financial condition, business or results of operations of the
Company, the Subsidiaries and the Joint Ventures taken as a whole; and the
terms "hazardous wastes", "toxic wastes" and "hazardous substances" shall
have the
8
meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
(ab) None of the Company or any Subsidiary or any Joint Venture
is an open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under Section 8
of the United States In vestment Company Act of 1940, as amended (the "1940
Act"), nor is it a closed-end investment company required to be registered,
but not registered, thereunder; and each of the Company, each Subsidiary
and each Joint Venture is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company", or, to
the best knowledge of the Company after due inquiry, a company controlled
by an "investment company" within the meaning of the 1940 Act.
(ac) The Company, each Subsidiary and each Joint Venture has
filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof, or has filed extensions in
accordance with applicable law, and has paid all taxes required to be paid
through the date hereof thereon, except for such failures to file or pay
that would not, individually or in the aggregate, be reasonably likely to
have a material adverse effect on the financial condition, business or
results of operations of the Company, the Subsidiaries and the Joint
Ventures taken as a whole, and no tax deficiency has been determined
adversely to the Company, any Subsidiary or any Joint Venture that has had
(nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company, any Subsidiary or any Joint Venture
would be reasonably likely to have) a material adverse effect on the
financial condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole.
(ad) The financial statements and the related notes and schedules
of each of the Company and, to the best of the Company's knowledge,
MidAmerican Energy Holdings Company ("MidAmerican") included or
incorporated by reference in the Registration Statement and Prospectus
fairly present the financial position, the results of operations and the
cash flows of each of the Company and its consolidated subsidiaries and
MidAmerican and its consolidated subsidiaries, respectively, at the
respective dates and for the respective periods to which they apply; and
such financial statements and the related notes and schedules have been
prepared in conformity with United States generally accepted accounting
principles applied on a consistent basis throughout the periods therein
specified. The historical information under the caption "Capitalization" in
the Prospectus is accurately described as of the date presented therein.
(ae) Since the date of the latest financial statements included
or incorporated by reference in the Prospectus (i) there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the
9
financial condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole, (ii) to the best of
the Company's knowledge, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the financial condition, business or results of operations of MidAmerican
and its subsidiaries and joint ventures taken as a whole and (iii) except
as disclosed in or contemplated by the Prospectus, there have not been any
transactions entered into by the Company, the Subsidiaries or any Joint
Venture, other than those in the ordinary course of business, which are
material to the Company, the Subsidiaries and the Joint Ventures taken as a
whole; and, except as disclosed in the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(af) The pro forma financial information included in the
Registration Statement and the Prospectus presents fairly the information
shown therein, has been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial information, has been
properly compiled on the pro forma bases described therein, and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein.
(ag) The accountants who have certified certain financial
statements of the Company or of businesses acquired or to be acquired by
the Company, as applicable, and whose reports appear in the Registration
Statement and the Prospectus or are incorporated by reference therein, are
and were independent public accountants as required by the Act and the
Rules and Regulations during the periods covered by the financial
statements on which they reported which are contained or incorporated by
reference in the Registration Statement or the Prospectus.
(ah) (i) Each of the operational electric generation facilities
("Plants") owned in whole or in part, directly or indirectly by (A) the
Company, (B) the Subsidiaries or (C) the Joint Ventures which is located in
the United States is a "qualifying cogeneration facility" or a "qualifying
small power production facility" (either or both of which are hereinafter
referred to as a "QF"), as such terms are de fined under the Federal Power
Act, as amended ("FPA"), and the regulations thereunder, and has
continuously been in compliance with the requirements for being a QF since
it commenced sales of electricity; (ii) with respect to each Plant under
development and located in the United States, either (x) to the extent that
the Company, the Subsidiaries or the Joint Ventures plan to act as the
owner and/or operator of any one of the Plants under development by the
Company, the Subsidiaries or the Joint Ventures and located in the United
States (as currently configured or as currently anticipated to be
configured), that owner and/or operator satisfies or is currently expected
to satisfy current regulatory requirements for being an "exempt wholesale
generator" ("EWG"), as such term is defined under the FPA, the Public
Utility Holding Company Act of 1935, as amended ("PUHCA") and the
10
regulations thereunder or (y) each of the Plants under development by the
Company, the Subsid iaries or the Joint Ventures and located in the United
States (as currently configured or as currently anticipated to be
configured) will be a QF and will be in continuous compliance with the
requirements for being a QF; (iii) the owner or operator of each of the
Plants under development by the Company, the Subsidiaries or the Joint
Ventures and located outside the United States (as currently configured or
as currently anticipat ed to be configured) satisfies or is currently
expected to satisfy current regulatory re quirements for being either (A)
an EWG or (B) a "foreign utility company," as such term is defined under
PUHCA and the regulations thereunder; (iv) none of the entities identified
in clause (A) or (B) of subparagraph (i) above owns or operates or will own
or operate any electric distribution facilities or any electric
transmission facilities in or outside of the United States other than
electric transmission facilities that have been or will be approved by the
Federal Energy Regulatory Commission as being part of a QF, or the owner
and/or operator of which will have qualified as EWG's or as "foreign
utility companies" as such terms are defined under the FPA, PUHCA and the
regulations thereunder; and (v) none of the entities identified in clause
(A), (B) or (C) of subparagraph (i) above is, or is subject to regulation
as, a "public utility holding company" or a "subsidiary company" of a
"public utility holding company," as those terms are defined under PUHCA,
or is subject to regulation under the FPA, other than as contemplated by 18
C.F.R Section 292.601(c), or, except as described in or contemplated by the
Prospectus, subject to regulation by any state law or foreign governmental
law with respect to rates or the financial or organizational regulation of
electric utilities.
(ai) The Agreement and Plan of Merger dated as of August 11, 1998
among the Company, Maverick Reincorporation Sub, Inc., MidAmerican and MAVH
Inc.(including all exhibits and schedules thereto, the "MidAmerican Merger
Agreement") has been duly and validly authorized, executed and delivered by
the Company and, assuming the due execution and delivery by the other
parties thereto, constitutes a valid and binding agreement on the part of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by equitable principles
generally. No facts have come to the Company's attention that have led the
Company to believe that the MidAmerican Merger or the reincorporation of
the Company contemplated by the MidAmerican Merger Agreement will not be
consummated on terms (subject to satisfaction of applicable conditions)
that are materially consistent with those described in the Prospectus.
(aj) The Company's pending acquisition of MidAmerican Energy
Holdings Company (the "MidAmerican Merger") and the consummation of the
transactions contemplated thereby, shall not (A) conflict with the
corporate charter of the Company, (B) constitute a breach of, or default
under, any agreement, indenture or other instrument to which the Company,
any Subsidiary or any Joint Venture is a party or by
11
which the Company, any Subsidiary or any Joint Venture is bound or to which
any of the properties of the Company, any Subsidiary or Joint Venture is
subject, or (C) result in a violation of any statue, rule, regulation,
order, judgment or decree of any court or governmental agency, body or
authority, having jurisdiction over the Company or, to the best of the
Company's knowledge, MidAmerican; except in the case of clauses (B) and (C)
such breaches, defaults or violations which, individually or in the
aggregate, would not have a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and Joint Ventures taken as a whole.
(ak) To the best of the Company's knowledge, the representations
and warranties of MidAmerican contained in the MidAmerican Merger Agreement
are true and correct in all material respects as if made on the date
hereof.
2. Purchase of the Securities by the Underwriters.
On the basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Company agrees to
sell $1,400,000,000 aggregate principal amount of the Securities to the several
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase the principal amount of Securities set forth opposite that
Underwriter's name in Schedule A hereto. The price to be paid to the Company
for the Securities shall be 98.5% of the aggregate principal amount of the 2003
Notes, 98.5% of the aggregate principal amount of the 2005 Notes, 98.5% of the
aggregate principal amount of the 2008 Notes and 98.5% of the aggregate
principal amount of the Bonds. The Company shall not be obligated to deliver
any of the Securities to be delivered on the Delivery Date, except upon payment
for all the Securities to be purchased on the Delivery Date (as hereinafter
defined) as provided herein.
3. Offering of the Securities by the Underwriters.
Upon authorization by the Representatives of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Securities. Delivery of and payment
for the Securities shall be made at the office of Skadden, Arps, Slate, Meagher
& Flom LLP, 919 Third Avenue, New York, New York 10022, at 10:00 A.M., New York
City time, on the third full business day following the date of this Agreement
or at such other date or place as shall be determined by agreement between CSFB
and the Company. This date and time are sometimes referred to as the "Delivery
Date." On the Delivery Date, the Company shall deliver or cause to be delivered
to the Representatives for the account of each Underwriter the Securities, in
the form of one or more permanent global notes in definitive form (the "Global
Securities") deposited with the Trustee as custodian for the Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC,
against payment to or upon the order
12
of the Company of the purchase price by certified or official bank check or
checks payable in or wire transfer of Federal (same-day) funds. Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Securities shall be registered in such names and
in such denominations as the Representatives shall request in writing not less
than two full business days prior to the Delivery Date. For the purpose of
expediting the checking and packaging of the Global Securities, the Company
shall make the Global Securities available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (2) (or, if applicable
and if consented to by Lehman, subparagraph (5)) of Rule 424(b) not
later than the second business day following the execution and
delivery of this Agreement. The Company will advise CSFB promptly of
any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplementation
without the Representatives' prior consent, which consent shall not be
unreasonably withheld; and the Company will also advise the
Representatives promptly of the effectiveness of any amendment or
supplementation of the Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of the Registration Statement and will use its reasonable best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required, in the opinion of counsel for the
Underwriters, to be delivered under the Act in connection with sales
by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any such time to amend the Prospectus to comply with the
Act, the Company will promptly notify the Representatives of such
event and will promptly prepare and file with the Commission, at its
own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7.
13
(d) As soon as practicable, but not later than 16 months
after the date of this Agreement, the Company will make generally
available to its securityholders an earnings statement (which need not
be audited) covering a period of at least 12 months beginning after
the later of (i) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to
the date of this Agreement and (ii) the date of the Company's most
recent Annual Report on Form 10- K filed with the Commission prior to
the date of this Agreement, which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies
of the Registration Statement (three of which will be signed and will
include all exhibits), each preliminary prospectus and preliminary
prospectus supplement relating to the Securities, and, so long as
delivery of a prospectus relating to the Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
the Representatives request. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualifications of the
Securities for sale under the laws of such jurisdictions in the United
States as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution,
provided that, in connection therewith the Company shall not, with
respect to any such jurisdiction, be required to qualify as a foreign
corporation, to file a general consent to service of process or to
take any other action that would subject it to service of process in
suits other than those arising out of the offering of the Securities
or to taxation in respect of doing business in any jurisdiction in
which it is not other wise subject.
(g) During the period of three years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
Underwriters, as soon as practicable, after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Representatives as soon as available,
a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
stockholders.
(h) The Company will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issuance tax,
including any interest and penalties, on the issuance and sale of the
Securities and on the execution and delivery of this Agreement. All
payments to be made by the Company hereunder shall be made without
withholding or deduction for or on account of any present or future
taxes, duties or governmental charges whatsoever unless the Company is
compelled by law to deduct or withhold such taxes, duties or charges.
In that event, the Company shall pay such additional amounts as may be
necessary in order that the net amounts received after such
14
withholding or deduction shall equal the amounts that would have been
re ceived if no withholding or deduction had been made.
(i) The Company shall apply the net proceeds from the sale
of the Notes as set forth in the Prospectus.
(j) No action has been or, prior to the completion of the
distribution of the Securities, will be taken by the Company in any
jurisdiction outside the United States that would permit a public
offering of the Securities, or possession or distribution of the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement issued in
connection with the offering of the Securities, or any other offering
material, in any country or jurisdiction where action for that purpose
is required.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and will reimburse
the Underwriters (if and to the extent necessary) for any travel expenses of
the Company's officers and employees and other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers of
the Securities; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing any preliminary prospectus,
preliminary prospectus supplement, the Prospectus and any amendment or
supplement thereto or any document incorporated by reference therein, all as
provided in this Agreement; (d) the costs of producing and distributing this
Agreement, the Base Indenture and the Second Supplemental Indenture and any
other related documents in connection with the offering, purchase, sale and
delivery of the Securities; (e) any rating agency fees; and (f) all other costs
and expenses incident to the performance of the obligations of the Company
under this Agreement; provided that, except as provided in this Section 6 and
in Section 11, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Securities which they may sell and the expenses of advertising any offering of
the Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective obligations
of the Underwriters hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company contained
herein, to the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) On or prior to the date of this Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof of Deloitte & Touche LLP (and the independent accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are included
15
or incorporated by reference in the Prospectus) in agreed form with respect
to the Company's financial statements and financial data.
(b) On or prior to the date of this Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of PricewaterhouseCoopers LLP (and the independent accountants of
any subsidiary of MidAmerican or of any business acquired by MidAmerican
for which financial statements and financial data are included or
incorporated by reference in the Prospectus) in agreed form with respect to
MidAmerican's financial statements and financial data.
All financial statements and schedules included in material
incorporated by reference into the Registration Statement and the
Prospectus shall be deemed included in the Registration Statement and the
Prospectuses for purposes of this subsection and subsection (a) above.
(c) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated by
the Commission.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a pro spective change in the financial condition, business or
results of operations of the Company, the Subsidiaries and the Joint
Ventures, taken as a whole, which, in the judgment of a majority in
interest of the Underwriters including the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with comple tion
of the public offering or the sale of and payment for the Securities; (ii)
any down grading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities or preferred stock of the Company (other
than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
16
emergency on the financial markets makes it impracticable or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Securities.
(e) The Representatives shall have received an opinion, dated the
Delivery Date, of Steven A. McArthur, Executive Vice President and General
Counsel of the Company, to the effect that:
(i) Each of the Company, the Subsidiaries and the Joint Ventures
has been duly organized and is validly existing and, if applicable, in
good standing under the laws of its respective jurisdiction of
organization and each of the Company, the Subsidiaries and the Joint
Ventures has the power and authority to own, lease and operate its
respective properties and to conduct its businesses as described in
the Prospectus;
(ii) Each of the Company, the Subsidiaries and the Joint Ventures
is duly registered or qualified to do business and (to the extent
applicable) is in good standing as a foreign corporation, a foreign
partnership or a foreign limited liability company, as the case may
be, in each jurisdiction, domestic or foreign, in which such
registration, qualification or good standing is required (whether by
reason of the ownership or leasing of property, the conduct of its
business or otherwise), except where the failure to so register or
qualify or be in good standing is not reasonably likely to have a
material adverse effect on the financial condition, business or
results of operation of the Company, the Subsid iaries and the Joint
Ventures taken as a whole;
(iii) The Company has the authorized and outstanding
capitalization as set forth under the caption "Capitalization" in the
Prospectus; to the best knowl edge of such counsel, all the
outstanding shares of capital stock of each Subsid iary have been duly
and validly authorized and issued and are fully paid and
nonassessable; and to the best knowledge of such counsel, except as
otherwise set forth in Schedule B attached hereto or disclosed in or
contemplated by the Prospectus, all outstanding shares of capital
stock of each Subsidiary are owned beneficially by the Company free
and clear of any material claims, liens, encumbrances and security
interests; and to the best knowledge of such counsel, all of the
partnership interests in the Joint Ventures owned by the Company (as
reflected in Schedule C attached hereto) have been duly and validly
authorized and issued, and, except as otherwise disclosed in or
contemplated by the Pro spectus, are owned beneficially by the Company
free and clear of any material claims, liens, encumbrances and
security interests;
(iv) Each of the Base Indenture and the Second Supplemental
Indenture and the MidAmerican Merger Agreement has been duly and
validly authorized, executed and delivered by the Company and
constitutes the legal, valid and
17
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency (involving, without limitation, all laws
relating to fraudulent trans fers), reorganization or other laws
relating to or affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law);
(v) The Securities have been validly authorized by the Company,
and, assuming due authentication by the Trustee, when issued and
delivered as contemplated by the Indenture upon payment therefor as
provided in this Agreement, will be validly issued and outstanding,
and will constitute valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except as enforcement may be
limited by bankruptcy, insolvency (involving, without limitation, all
laws relating to fraudulent transfers), reorganization or other laws
relating to or affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law);
(vi) The statements in the Prospectus under the captions
"Description of the Securities" and "Description of Debt Securities,"
insofar as they purport to summarize the provisions of the Indenture
and the Securities, fairly summarized such provisions in all material
respects.
(vii) To such counsel's knowledge, except as otherwise disclosed
in the Prospectus, there are no contracts, agreements or
understandings between the Company and any person that would give rise
to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment;
(viii) To such counsel's knowledge, there are no contracts,
agreements or understandings which have not been satisfied or waived
between the Compa ny and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include any such securities
in the securities registered pursuant to the Registra tion Statement
or in any securities being registered pursuant to any other regis
tration statement filed by the Company under the Act;
(ix) Except as disclosed in or contemplated by the Prospectus,
each of the Company, the Subsidiaries and the Joint Ventures has good
and valid title to, or valid and enforceable leasehold or contractual
interests in, all real prop erties and all other properties and assets
owned or leased by each of them that are material to
18
the business of each such entity, in each case free from all
liens, encumbrances, and defects that would materially interfere with
the use made or to be made thereof by them;
(x) To such counsel's knowledge, there is no legal or
governmental action, suit or proceeding before any court, governmental
agency, body or authority, domestic or foreign, now pending,
threatened against, or involving, the Company, any Subsidiary or any
Joint Venture (i) of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Registration Statement or (ii) that, if determined adversely to the
Company, any Subsidiary or any Joint Venture, is reasonably likely to
have, individually or in the aggregate, a material adverse effect on
the financial condition, business or results of operations of the
Company, the Subsidiaries and the Joint Ventures taken as a whole or
on the ability of the Company to perform its obligations under this
Agreement, the Indenture or the Securities;
(xi) To such counsel's knowledge, the Company, each Subsidiary
and each Joint Venture (i) has obtained each license, permit,
certificate, franchise or other governmental authorization which is
material to the ownership of their properties or to the conduct of
their businesses as described in the Prospectuses and (ii) is in
compliance with all terms and conditions of such license, permit,
certificate, franchise or other governmental authorization, except (x)
in either case where the failure to do so is not reasonably likely to
have, individually or in the aggregate, a material adverse effect on
the financial condition, business or results of operations of the
Company, the Subsidiaries and the Joint Ventures taken as a whole, (y)
permits, consents and approvals that may be required for future
drilling or operating activities which are ordinarily deemed to be
ministerial in nature and which are anticipated to be obtained in the
ordinary course and (z) permits, consents and approvals for
developmental or construction activities which have not yet been
obtained but which have been or will be applied for in the course of
development or construction and which are anticipated to be obtained
in the ordinary course;
(xii) The Company has all requisite corporate power and authority
to enter into this Agreement, the MidAmerican Merger Agreement, the
Base Indenture and the Second Supplemental Indenture, to issue the
Securities and to consummate the transactions contemplated by this
Agreement, the Indenture, the Securities and the MidAmerican Merger
Agreement;
(xiii) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations
which have not been described or filed as
19
exhibits to the Registration Statement or incorporated by
reference therein as permitted by the Rules and Regulations;
(xiv) This Agreement has been duly authorized, executed and
delivered by the Company;
(xv) (A) The execution, delivery and performance of this
Agreement, the MidAmerican Merger Agreement, the Indenture, the
issuance and sale of the Securities and the use of proceeds of the
Securities as designated in the Prospectus do not and will not (i)
conflict with the corporate charter or by-laws or partnership
agreement of the Company, any Subsidiary or any Joint Venture, (ii) to
the best knowledge of such counsel (except as contemplated by the
Indenture), conflict with, result in the creation or imposition of any
lien, charge or other encumbrance upon any asset of the Company, any
Subsidiary or any Joint Venture pursuant to the terms of, or
constitute a breach of, or default under, any agreement, indenture or
other instrument to which the Company, any Subsidiary or any Joint
Venture is a party or by which the Company, any Subsidiary or any
Joint Venture is bound or to which any of the properties of the
Company, any Subsidiary or any Joint Venture is subject, or (iii) to
the best knowledge of such counsel, result in a violation of any
statute, rule, regulation, order, judgment or decree of any court or
governmental agency, body or au thority having jurisdiction over the
Company, any Subsidiary or any Joint Venture or any of their
properties where any such conflict, encumbrance, breach, default or
violation under clauses (ii) or (iii), individually or in the
aggregate, is reasonably likely to have a material adverse effect on
the financial condition, business or results of operations of the
Company, its Subsidiaries and the Joint Ventures taken as a whole; (B)
to the knowledge of such counsel, except for (i) the registration of
the Securities under the Act and the qualification of the Indenture
under the Trust Indenture Act and (ii) such con sents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Securities, no
consent, authorization or order of, or filing or registration by the
Company, any Subsidiary or any Joint Venture with, any court,
governmental agency or third party is required in connection with the
execution, delivery and performance by the Company of this Agreement,
the Indenture, the consummation of the transactions contemplated
herein and therein, and the issuance, distribution and sale of the
Securities as contemplated herein and therein, the failure to obtain
which, individually or in the aggregate, is reasonably likely to have
a material adverse effect on the financial condition, business or
results of operations of the Company, the Subsidiaries and the Joint
Ventures taken as a whole, or on the Securities or the ability of the
Company to perform its obligations under this Agreement, the Indenture
and the Securities and (C) the Company has full corporate power and
authority to authorize, issue and sell the Securities as contemplated
by this Agreement and the Indenture;
20
(xvi) The Company is not required to be registered under the
Invest ment Company Act of 1940, as amended;
(xvii) The documents incorporated by reference in the Prospectus
and any further amendments or supplements to any such incorporated
document made by the Company prior to the Delivery Date (other than
the financial statements, related schedules and other financial and
statistical information contained therein or omitted therefrom as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
appear on their face to have been appropriately responsive in all
material respects to the applicable requirements of the Act or the
Exchange Act, as the case may be, and the Rules and Regulations of the
Commission thereunder; and
(f) The Company shall have furnished to the Representatives the
opinion of Willkie Farr & Gallagher, special counsel to the Company,
addressed to the Underwriters and dated the Delivery Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly organized and is validly existing
and in good standing under the laws of its jurisdiction of
organization and the Company has the corporate power and authority to
own, lease and operate its properties and to conduct its businesses as
described in the Prospectus;
(ii) Such counsel has been advised by the Commission that the
Registration Statement has been declared effective under the Act; the
Prospectus has been filed with the Commission pursuant to the
appropriate subparagraph of Rule 424(b) of the Rules and Regulations;
to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration State ment has been issued and no
proceeding for that purpose is pending or threatened by the
Commission;
(iii) The Registration Statement, as of its effective date, the
Registra tion Statement and the Prospectus, as of the date of this
Agreement, and any further amendments or supplements thereto made by
the Company prior to the Delivery Date (in each case, other than the
financial statements, related schedules, other financial and
statistical information contained therein or omitted therefrom as to
which such counsel need express no opinion) as of their effective
dates, appear on their face to have been appropriately responsive in
all material respects to the applicable requirements of the Act, the
Exchange Act and the Rules and Regulations;
(iv) Each of the Base Indenture and the Second Supplemental
Indenture has been duly and validly authorized, executed and delivered
by the Company and
21
constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization or other similar laws affecting creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law);
(v) The Securities have been validly authorized by the Company,
and, upon payment therefor as provided in this Agreement, will be
validly issued and outstanding, and will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
except as enforcement may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization or other similar laws relating to or
affecting creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law);
(vi) To such counsel's knowledge, there are no contracts or other
documents which are required to be described in the Prospectus or
filed as exhibits to the Registration Statement by the Act or by the
Rules and Regulations which have not been described or filed as
exhibits to the Registration Statement or incorporated by reference
therein as permitted by the Rules and Regulations;
(vii) This Agreement has been duly authorized, executed and
delivered by the Company; and
(viii) No consent, authorization, order of, or filing or
registration by the Company with, any United States governmental
authority or body having jurisdiction over the Company is necessary or
required for the performance by the Company of its obligations under
this Agreement, the Indenture or the Securities or in connection with
the issuance and sale of the Securities hereunder or thereunder,
except as may be required under applicable federal, state or foreign
securities laws or blue sky laws in connection with the purchase and
distribution of the Securities.
(g) In the rendering of the opinions described in Section 7(e)
and Section 7(f) above, such counsel may (i) state that their opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware and (ii) rely, to the extent they deem proper, in
respect of matters of fact, upon certificates and representations of
officers of the Company, the Subsidiaries or the Joint Ventures and public
officials. Such counsel
22
shall also have furnished to the Representatives a written statement,
addressed to the Underwriters and dated the Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that (i) such counsel (in the case of Willkie Farr & Gallagher, such
counsel may state that they have acted as special counsel to the Company
for purposes of the offering of the Securities) have participated in
conferences with representatives of the Company, some of which have been
attended by the Underwriters and their counsel, at which conferences the
contents of the Registration Statement, the Prospectus, each amendment
thereof and supplement thereto and related matters were discussed, although
such counsel has not independently checked or verified and is not passing
upon and assumes no responsibility for the factual accuracy, completeness
or fairness of the statements (except to the extent set forth in the
opinion of such counsel) contained in the Registra tion Statement, the
Prospectus, any amendment thereof or supplement thereto, and did not
participate in the preparation of the documents incorporated by reference
in the Registration Statement and (ii) based on the foregoing, no facts
have come to the atten tion of such counsel which cause them to believe
that (except for the financial state ments, related schedules and other
financial and statistical information contained therein or omitted
therefrom as to all of which such counsel need not express any belief) (I)
the Registration Statement, as of its effective date and as of the date of
this Agreement, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the
Prospectus, as amended and supplemented as of the date of this Agreement or
the Delivery Date, contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading or (II), in the case of the General
Counsel of the Company, any document incorporated by reference in the
Prospectus or any further amendment or supplement to such incorporated
document made by the Company prior to the Delivery Date when they became
effective or were filed with the Commission, as the case may be, contained,
in the case of a registration statement that became effective under the
Act, any untrue statement of a material fact or omitted to state a material
fact required to be stated therein, in the light of the circumstances under
which they were made, or necessary in order to make the statements therein
not misleading, or, in the case of other documents which were filed under
the Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(h) The Representatives shall have received from Skadden, Arps,
Slate Meagher & Flom LLP, counsel for the Underwriters, such opinion or
opinions, dated the Delivery Date, with respect to the issuance and sale of
the Securities, the Regis tration Statement, the Prospectus and other
related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
23
(i) The Representatives shall have received a certificate, dated
the Delivery Date, of the President or any Vice-President and a principal
financial or accounting officer of the Company in which such officers shall
state that, to the best of their knowledge after reasonable investigation,
the representations and warranties of the Company in this Agreement are
true and correct in all material respects, that the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Delivery Date, that no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date of the most
recent financial statements included or incorporated by reference in the
Prospectus, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole except as set forth in
or contemplated by the Prospectuses or as described in such certificate.
(j) The Representatives shall have received letters, dated the
Delivery Date, of Deloitte & Touche LLP and such other independent
accountants for subsidiaries and acquired businesses which meet the
requirements of subsection (a) of this Section, except that the specified
date referred to in such subsection will be a date not more than three days
prior to the Delivery Date for the purposes of this subsection.
(k) The Representatives shall have received letters, dated the
Delivery Date, of PricewaterhouseCoopers LLP and such other independent
accountants for subsidiaries and acquired businesses which meet the
requirements of subsection (b) of this Section, except that the specified
date referred to in such subsection will be a date not more than three days
prior to the Delivery Date for the purposes of this subsection.
(l) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus (i) except as
disclosed in the Prospectus, there shall have been no material adverse
change, or a development which is reasonably likely to lead to a material
adverse change, in the financial condition, business or results of
operations of the Company, the Subsidiaries and the Joint Ventures taken as
a whole and (ii) except as disclosed in the Prospectus, there shall not
have been any transactions entered into by the Company, the Subsidiaries or
any Joint Venture, other than those in the ordinary course of business,
which are material and adverse to the Company, the Subsidiaries and the
Joint Ventures taken as a whole, and which, in the judgment of the
Representatives, make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed in compliance with the
provisions hereof
24
only if they are in the form and substance reasonably satisfactorily to
counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who
controls any Underwriter within the meaning of the Act, from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to
which that Underwriter, officer, employee or controlling person may become
subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, or in any amendment or supplement
thereto, or in any related preliminary prospectus or preliminary prospectus
supplement, (ii) the omission or alleged omission to state in the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, any material fact required to be stated therein or necessary to
make the statements therein (with respect to any prospectus or prospectus
supplement, in light of the circumstances under which they were made) not
misleading, and shall reimburse each Underwriter and each officer, employee
or controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based
upon, an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus or preliminary
prospectus supplement, the Registration Statement or the Prospectus, or in
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion therein;
provided, that, with respect to any untrue statement or omission in the
Preliminary Prospectus Supplement dated September 9, 1998 (the "Preliminary
Prospectus"), this indemnity agreement shall not inure to the benefit of
any Underwriter, or its officers, employees or controlling persons, on
account of any loss, claim, damage, liability or action arising from the
sale of any Securities to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by
the Act, and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in the Prospectus and the Prospectus
was made available to the Underwriters prior to the sale of the Securities.
For purposes of the last proviso to the immediately preceding sentence, the
term
25
"Prospectus" shall not be deemed to include the documents incorporated by
reference therein, and no Under writer shall be obligated to send or give
any supplement or amendment to any document incorporated by reference in
the Preliminary Prospectus or Prospectus to any person other than a person
to whom such Underwriter had delivered such incorporated document or
documents in response to a written request therefor.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers and employees, each of its
directors, and each person, if any, who controls the Company within the
meaning of the Act, from and against any loss claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company
may become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
(A) in the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement or (ii) the omission or alleged omission to state in
the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any related preliminary prospectus or preliminary
prospectus supplement, any material fact required to be stated therein or
necessary to make the statements therein (with respect to any prospectus or
prospectus supplement, in the light of the circumstances under which they
were made) not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on
behalf of such Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure and, provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify
the indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the
26
defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the
Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company under this Section 8 if the employment of
such counsel shall have been authorized in writing by the Company in
connection with the defense of such action or, if in the writ ten opinion
of counsel to either the Company or the Representatives, representation of
both parties by the same counsel would be inappropriate due to actual or
likely conflicts of interest between the Representatives and those
Underwriters, officers, employees, directors and controlling persons and in
that event the fees and expenses of such separate counsel shall be paid by
the Company. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with the consent of the indemnifying party or if there be a final judgment
of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect
27
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of
the Securities purchased under this Agreement (before deducting expenses)
received by the Company, bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be
deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the amount of Securities underwritten by it and distributed to the
public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 11(d) are several in
proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Securities by the Underwriters set forth on the cover page concerning the
terms of the offering by the Underwriters and the information relating to
over-allotments and stabilizing in paragraphs 7, 8, 9 and 10 in the section
"Underwriting" in the Prospectus constitute the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of
the Underwriters specifically for inclusion in the Registration Statement
and the Prospectus.
28
9. Defaulting Underwriters.
If, on the Delivery Date, any Underwriter defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Securities which the defaulting
Underwriter agreed but failed to purchase on the Delivery Date in the
respective proportions which the principal amount of the Securities set
opposite the name of each remaining non-defaulting Underwriter in Schedule A
hereto bears to the aggregate principal amount of the Securities set opposite
the names of all the remaining non-defaulting Underwriters in Schedule A
hereto; provided, however, that the remaining non-defaulting Underwriters shall
not be obligated to purchase any of the Securities on the Delivery Date if the
aggregate principal amount of the Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase on such date exceeds 10% of the
aggregate principal amount of the Securities to be purchased on the Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the aggregate principal amount of the Securities
which it agreed to purchase on the Delivery Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, the aggregate principal
amount of the Securities to be purchased on the Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule A hereto who, pursuant to this Section 9,
purchases Securities which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the Representative or the Company
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel
for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Securities if, prior to that
time, any of the events described in Sections 7(d) or 7(l), shall have occurred
or if the Underwriters shall decline to purchase the Notes for any reason
permitted under this Agreement.
29
11. Reimbursement of Underwriters' Expenses. If the Company shall fail
to tender the Securities for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
material agreement on its part to be performed, or because any other material
condition of the Underwriters' obligations hereunder required to be fulfilled
by the Company is not fulfilled, the Company will reimburse the Underwriters
for all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Securities in excess of $250,000,
and upon demand the Company shall pay the full amount thereof to the
Representatives; provided, however, that in no event shall such amount exceed
$100,000. If this Agreement is terminated pursuant to Section 9 by reason of
the default of one or more Underwriters, the Company shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Credit Suisse First Boston Corporation,
Eleven Madison Avenue, New York, New York 10010, Attention: Investment
Banking Department/Transaction Advisory Group (Fax: (212) 325-8278);
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: General Counsel (Fax: (402) 231-1658);
provided, however, that any notice to an Underwriter pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied to any other
party hereto by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
CSFB on behalf of the Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Act and (B) the indemnity agreement of the Underwriters
contained in Section 8(b) of this Agreement shall be deemed to be for the
benefit of directors of the Company, officers of the Company who have signed
the Registration Statement and any person controlling the Company within the
meaning of
30
Section 15 of the Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Section 13, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf on them, respectively, pursuant to this Agreement,
shall survive the delivery of and payment for the Securities and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
15. Definition of the Term "Business Day". For purposes of this
Agreement, "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
Each party irrevocably agrees that any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby ("Related Proceedings") may be instituted in the federal
courts of the United States of America located in the City of New York or the
courts of the State of New York in each case located in the Borough of
Manhattan in the City of New York (collectively, the "Specified Courts"), and
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"Related Judgment"), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. The parties further agree that
service of any process, summons, notice or document by mail to such party's
address set forth above shall be effective service of process for any lawsuit,
action or other proceeding brought in any such court. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any lawsuit, action or other proceeding in the Specified Courts, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim
in any such court that any such lawsuit, action or other proceeding brought in
any such court has been brought in an inconvenient forum.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
31
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CALENERGY COMPANY, INC.
By: /s/ Steven A. McArthur
Name: Steven A. McArthur
Title: Executive Vice President
Accepted:
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
GOLDMAN, SACHS & CO.
For themselves and as Representatives
of the several Underwriters named
in Schedule A hereto
By CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Adebayo Ogunlesi
Name: Adebayo Ogunlesi
Title: Managing Director
Authorized Representative
SCHEDULE A
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Underwriters 2003 Notes 2005 Notes 2008 Notes Bonds
- ------------ ---------- ---------- ---------- -----
Credit Suisse First
Boston Corporation $124,700,000 $150,800,000 $261,000,000 $275,500,000
Lehman Brothers Inc. 70,950,000 85,800,000 148,500,000 156,750,000
Goldman, Sachs & Co. 19,350,000 23,400,000 40,500,000 42,750,000
------------ ============ ============ ============
Total $215,000,000 $260,000,000 $450,000,000 $475,000,000
============ ============ ============ ============
SCHEDULE B
Subsidiaries
Coso Funding Corp.+
Incorporated in Delaware
Coso Hotsprings Intermountain Power, Inc. +
Incorporated in Delaware
China Lake Operating Company +
Incorporated in Delaware
Coso Technology Corporation +
Incorporated in Delaware
China Lake Geothermal Management Company +
Incorporated in Delaware
China Lake Plant Services, Inc. +
Incorporated in California
Coso Hotsprings Overland Power, Inc.+
Incorporated in Delaware
CE Geothermal, Inc.
Incorporated in Delaware
Western States Geothermal Company
Incorporated in Delaware
Intermountain Geothermal Company
Incorporated in Delaware
CalEnergy Development Corporation
Incorporated in Delaware
California Energy Yuma Corporation
Incorporated in Utah
California Energy General Corporation
Incorporated in Delaware
Rose Valley Properties, Inc.
Incorporated in Delaware
CalEnergy Minerals, LLC
Incorporated in Delaware
CBE Engineering Co.
Incorporated in California
CE Exploration Company
Incorporated in Delaware
CE Newberry, Inc.
Incorporated in Delaware
CE International Investments Inc.
Incorporated in Delaware
CE Philippines Ltd.
Incorporated in Bermuda
CE Mahanagdong Ltd.
Incorporated in Bermuda
Ormoc Cebu Ltd.
Incorporated in Bermuda
CE Cebu Geothermal Power Company, Inc.+
Incorporated in the Philippines
CE Indonesia Ltd.+
Incorporated in Bermuda
CE Casecnan Ltd.
Incorporated in Bermuda
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
CE Singapore Ltd.
Incorporated in Bermuda
CalEnergy International Ltd.
Incorporated in Bermuda
CE Bali, Ltd.
Incorporated in Bermuda
CE Casecnan Water and Energy Company, Inc.+
Incorporated in the Philippines
Capital Stock: Owned 35% by CE Casecnan Ltd.,
35% by Kiewit Energy International (Bermuda) Ltd.,
15% by La Prairie Group Contractors (International) Ltd and
15% by San Lorenzo Ruiz Builders & Developers Group, Inc.
Magma Power Company+
Incorporated in Nevada
CalEnergy Operating Corporation+
Incorporated in Delaware
Salton Sea Power Company+
Incorporated in Nevada
Vulcan Power Company+
Incorporated in Nevada
Imperial Magma+
Incorporated in Nevada
Magma Land Company I+
Incorporated in Nevada
Desert Valley Company+
Incorporated in California
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Fish Lake Power Company+
Incorporated in Delaware
Magma Netherlands B.V.+
Formed in the Netherlands
Tongonan Power Investment, Inc.+
Incorporated in the Philippines
Salton Sea Funding Corporation +
Incorporated in Delaware
Salton Sea Royalty Company+
Incorporated in Delaware
CE Asia Ltd.+
Incorporated In Bermuda
American Pacific Finance Company
Incorporated in Delaware
CalEnergy International Services, Inc.
Incorporated in Delaware
CalEnergy Imperial Valley Company, Inc.
Incorporated in Delaware
California Energy Retail Company, Inc.
Incorporated in Delaware
CE Humboldt, Inc.
Incorporated in Delaware
CE Ijen Ltd.
Incorporated in Bermuda
Magma Generating Company I
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Incorporated in Nevada
Magma Generating Company II
Incorporated in Nevada
Peak Power Corporation
Incorporated in California
CE Luzon Geothermal Power Company, Inc.+
Incorporated in the Philippines
Capital Stock: Owned 50% by CE Mahanagdong Ltd.;
50% by Kiewit Energy International (Bermuda) Ltd.;
an industrial company has the right to acquire 10%
of the equity - 5% from CE Mahanagdong Ltd. and 5%
from Kiewit Energy International (Bermuda) Ltd.
Himpurna California Energy Ltd.+
Incorporated in Bermuda
Capital Stock: Owned 47% by CE Indonesia Ltd.;
47% by Kiewit Energy International (Bermuda) Ltd.,
and 6% by P.T. Himpurna Enersindo Abadi; ("Himpurna").
Himpurna has assigned the right to certain preferred
dividends representing a 4% interest in Himpurna
California Energy Ltd., under the Joint Operating Contract,
Pertamina has certain rights to acquire up to a 25% interest
in the Joint Operating Contract, but not under the Energy
Sales Contract
Patuha Power, Ltd.+
Incorporated in Bermuda
Capital Stock: Owned 44% by CE Singapore Ltd.,
and 44% by Kiewit Energy International (Bermuda) Ltd.;
and 12% by Mahaka Energy; under the Joint
Operating Contract, Pertamina has certain rights to
acquire up to a 25% interest in the Joint Operating Contract,
but not under the Energy Sales Agreement
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Bali Energy Ltd.+
Incorporated in Bermuda
Capital Stock: Owned 50% by CE Bali Ltd. and
50% by Kiewit Energy International (Bermuda) Ltd.
P.T. Pandanwangi Sekartji has the right to acquire
up to 40% of the equity in Bali Energy Ltd.
Norming Investments BV+
Incorporated in the Netherlands
BN Geothermal Inc.+
Incorporated in Delaware
Conejo Energy Company+
Incorporated in California
Niguel Energy Company+
Incorporated in California
San Felipe Energy Company+
Incorporated in California
CE/FS Holding Company, Inc.
Incorporated in Delaware
Falcon Seaboard Power Corporation
Incorporated in Texas
Falcon Seaboard Resources, Inc.
Incorporated in Texas
Falcon Seaboard Energy Corporation
Incorporated in Texas
Falcon Seaboard Gas Company
Incorporated in Texas
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Falcon Seaboard Oil Company
Incorporated in Texas
Falcon Seaboard Pipeline Corporation
Incorporated in Texas
Big Spring Pipeline Company
Incorporated in Texas
Falcon Power Operating Company
Incorporated in Texas
Power Resources, Inc.+
Incorporated in Texas
North Country Gas Pipeline Corporation +
Incorporated in New York
Owned by Saranac Power Partners, L.P.
Saranac Energy Company, Inc.+
Incorporated in Delaware
SECI Holdings, Inc.+
Incorporated in Delaware
Northern Consolidated Power, Inc. +
Incorporated in Delaware
NorCon Holdings, Inc.
Incorporated in Delaware
CE Electric, Inc.
Incorporated in Delaware
CE Power, Inc.
Incorporated in Delaware
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
CE Electric UK plc +
Incorporated in England
Capital Stock: Owned by CE Electric UK Holdings
American Pacific Finance Company II +
Incorporated in Delaware
Capital Stock: Owned 50% by CalEnergy Company, Inc. and
50% by Kiewit Energy Company
CE Indonesia Geothermal, Inc.
Incorporated in Delaware
Slupo I B.V.+
Incorporated in Netherlands
Owned 50% by CE Asia Ltd. and 50% by Kiewit
Energy International (Bermuda) Limited
CE Indonesia Funding Corp. +
Incorporated in Delaware
Owned 50% by Himpurna California Energy Ltd.
and 50% by Patuha Power, Ltd.
Gilbert/CBE Indonesia L.L.C.
Organized in Nebraska
Owned 60% Gilbert Industrial Corporation and 40% CBE Engineering Co.
Northern Electric plc+
Incorporated in England and Wales
Owned by CE Electric UK plc.
Northern Electric Generation (NPL) Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Supply Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Northern Electric Share Scheme Trustee Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Transport Finance Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Retail Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Properties Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Distribution Limited
Incorporated in England and Wales
Owned by Northern Electric plc.
Gas UK Limited+
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric (Overseas Holdings) Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Generation (CPS) Limited +
Incorporated in England and Wales
Owned indirectly by Northern Electric plc.
Kings Road Developments Limited+
Incorporated in England and Wales
Owned 48% by Northern Electric plc., 26% by Cussins Homes
and 26% by Bellway Homes.
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Ryhope Road Developments Ltd. +
Incorporated in England and Wales
Owned 49% by Northern Electric Properties Ltd. and
51% by Bowey Group Limited
Stamfordham Road Developments Ltd.+
Incorporated in England and Wales
Owned 49% by Northern Electric Properties Ltd. and
51% by Cussins Commercial Development Ltd.
Northern Electric Generation (TPL) Limited +
Incorporated in England and Wales
Owned indirectly by Northern Electric plc.
Northern Electric Generation Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Insurance Services Limited +
Incorporated in England and Wales
Owned indirectly by Northern Electric plc.
Northern Metering Services Limited +
Incorporated in Isle of Man
Owned indirectly by Northern Electric plc.
CalEnergy Gas (UK) Limited +
Incorporated in England and Wales
Owned indirectly by Northern Electric plc.
Northern Electric Generation (Peaking) Limited +
Incorporated in England and Wales
Owned indirectly by Northern Electric plc.
Northern Electric Training Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Northern Electric Transport Limited +
Incorporated in England and
Wales Owned by Northern Electric plc.
Northern Information Systems Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Utility Services Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Viking Power Ltd.+
Incorporated in England and Wales
Capital Stock: Owned 50% by Northern Electric Generation Limited
and 50% by Rolls-Royce Power Ventures Limited
Northern Electric Finance plc. +
Incorporated in England and Wales
Owned indirectly by Northern Electric plc.
Northgas Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Tracing & Collection Services Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Telecom Limited +
Incorporated in England and Wales
Owned by Northern Electric plc.
CE Electric UK Holdings +
Incorporated in England
Capital Stock: Owned 35% by CE Power, Inc., 35% by CE Electric Inc. and
30% by Kiewit Energy UK, Inc.
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
CalEnergy Gas (Polska)
*Polish limited liability company
Owned indirectly by Northern Electric plc.
CalEnergy Capital Trust I
Formed under the laws of Delaware
CalEnergy Capital Trust II
Formed under the laws of Delaware
CalEnergy Capital Trust III
Formed under the laws of Delaware
CalEnergy Capital Trust IV
Formed under the laws of Delaware
CalEnergy Capital Trust V
Formed under the laws of Delaware
CalEnergy Capital Trust VI
Formed under the laws of Delaware
Aurora 2000, LLC+
Incorporated in Delaware
CalEnergy Development Company
Incorporated in Delaware
CalEnergy International, Inc.
Incorporated in Delaware
CE Aurora I, Inc.+
Incorporated in Delaware
CE Salton Sea Inc.+
Incorporated in Delaware
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
CE Turbo LLC+
Incorporated in Delaware
Kiewit Energy Company+
Incorporated in Delaware
Kiewit Energy Pacific Holdings Corp.+
Incorporated in Delaware
Kiewit Energy U.K. Inc.+
Incorporated in Delaware
Maverick Reincorporation Sub, Inc.+
Incorporated in Iowa
MAVH Inc.+
Incorporated in Iowa
Northern Aurora, Inc.+
Incorporated in Delaware
Salton Sea Minerals Corp.+
Incorporated in Delaware
Salton Sea Power L.L.C.+
Incorporated in Delaware
Kiewit Energy International (Bermuda) Ltd.+
Incorporated in Bermuda
Polska Power Sp.z.o.o.+
Incorporated in Poland
CalEnergy Europe Limited+
Incorporated in the United Kingdom
CalEnergy Gas (Pipelines) Limited+
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Incorporated in the United Kingdom
CE Electric UK Funding Company+
Incorporated in the United Kingdom
Neptune Power Ltd.+
Incorporated in the United Kingdom
Northern Aurora Limited (f/k/a/ Aurora 2000+Limited)
Incorporated in the United Kingdom
Northern Electric & Gas Limited+
Incorporated in the United Kingdom
Northern Electric Investments Limited+
Incorporated in the United Kingdom
Seal Sands Network Limited+
Incorporated in the United Kingdom
Teesside Power Limited+
Incorporated in the United Kingdom
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
SCHEDULE C
Joint Ventures
Coso Energy Developers (CED)+
Formed in California
General Partnership: 48% CHIP; 52% Caithness Coso
Holdings, L.P.
Coso Finance Partners+
Formed in California
General Partnership: 46.3% owned by CLOC; 53.7%
owned by ESCA I, L.P.
Coso Power Developers (CPD)+
Formed in California
General Partnership: 50% owned by CTC; 50% by
Caithness Navy II
Coso Transmission Line Partners+
Formed in California
General Partnership: Owned 50% by CED; 50% by CPD
Vulcan/BN Geothermal Power Company+
Formed in Nevada
Partnership Interests: Vulcan Power Company 50%
General Partner; BN Geothermal, Inc. 50% General
Partner
Del Ranch, L.P.+
Formed in California
Partnership Interests: Magma Power Company 10%
Limited Partner; CalEnergy Operating Company 40% General Partner; Conejo Energy
Company 10% Limited Partner and 40% General Partner
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Elmore, L.P.+
Formed in California
Partnership Interests: Magma Power Company 10%
Limited Partner; CalEnergy Operating Company 40% General Partner; Niguel Energy
Company 10% Limited Partner
and 40% General Partner
Leathers, L.P.+
Formed in California
Partnership Interests: Magma Power Company 10%
Limited Partner; CalEnergy Operating Company 40% General Partner; San Felipe
Energy Company 10% Limited Partner and 40% General Partner
Salton Sea Brine Processing L.P.+
Limited Partnership Formed in California
Salton Sea Power Generation L.P.+
Limited Partnership Formed in California
Visayas Geothermal Power Company+
Partnership Formed in the Philippines
Yuma Cogeneration Associates+
Formed in Utah
Alto Peak Power Company
Formed in the Philippines
China Lake Joint Venture
Formed in California
Owned 50% by CalEnergy Company and
50% by Caithness Geothermal 1980 Ltd.
Coso Finance Partners II
Formed in California
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
Owned 50% by China Lake Geothermal Management Co., an affiliate of
CalEnergy Company, Inc. and 50% by ESCA II, L.P.
Coso Land Company
Formed in California
Owned 50% by CalEnergy Company and
50% by Caithness Geothermal 1980 Ltd.
Gilbert/CBE L.P.
Limited partnership formed in Nebraska
Partnership Interests: 20% CBE Engineering Co. and
80% Gilbert Industrial Corporation
Saranac Power Partners, L.P.+
Limited partnership formed in Delaware
Partnership Interests: 80% Saranac Energy Company, Inc. and 20% affiliates of
Tomen Power Corporation
NorCon Power Partners, L.P.+
Limited partnership formed in Delaware
Partnership Interests: 80% Northern Consolidated Power, Inc. and 20%
affiliates of Tomen Power Corporation
- -------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.